in the Estate of Consuella Perkins Ulbrich ( 2015 )

ACCEPTED
04-14-00812-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/10/2015 8:28:48 AM
KEITH HOTTLE
CLERK
No. 04-14-00812-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS 02/10/2015 8:28:48 AM
FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
Clerk
OF TEXAS AT SAN ANTONIO
IN THE ESTATE OF CONSUELLA PERKINS ULBRICH
From the Probate Court No. One, Bexar County, Texas
Trial Court Cause No. 2011-PC-0686
Honorable Polly Jackson Spencer, Judge Presiding
APPELLANT’S BRIEF
Respectfully submitted,
Philip M. Ross
ORAL ARGUMENT REQUESTED State Bar No. 017304200
1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
By: /s/ Philip M. Ross
Philip M. Ross
Attorney for Appellant
Douglas J. Ulbrich
IDENTITY OF PARTIES AND COUNSEL
Party: Counsel:
Douglas J. Ulbrich Philip M. Ross
State Bar No. 17304200
Appellant 1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
Bob Hope, Darlene Wilson Kristine Arlitt
and Debra Bird 206 Locust Street
San Antonio, Texas 78212
Appellees Phone: 210/281-6101
FAX: 210/281-6105
Email: kristine@arlittlaw.com
i
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ..………………………… ii
TABLE OF CONTENTS ……………………………………………… iii
INDEX OF AUTHORITIES ………………………………………….. iv
STATEMENT OF THE CASE ……………………………… ………. 1
STATEMENT OF JURISDICTION ………………………………….. 2
STATEMENT REGARDING THE RECORD….……………………… 2
ISSUES PRESENTED ………………………………………………….. 2
SUMMARY JUDGMENT EVIDENCE …............................................... 3
STATEMENT OF FACTS …………………………………………….. 5
STANDARD OF REVIEW ….....................................................………. 10
SUMMARY OF ARGUMENT ………………………………………. 10
ARGUMENT AND AUTHORITIES ………………………………….. 12
1 Whether the trial court granted summary judgment in
error, when there were genuine issues of material fact
as to each element of Douglas' claim to set aside his
ranch as his rural homestead? …................................................. 12
2 Whether the trial court erred in finding as matters of law
that the homestead of the Decedent was 3939 Starhill,
San Antonio, Texas, when there were genuine issues of
material fact that the Decedent's homestead was the
family ranch in Medina County? …........................................... 19
ii
3 Whether the trial court erred in finding as a matter of law
that the Texas Constitution's Survivor Homestead granted
to Douglas Ulbrich was 3939 Starhill, San Antonio,
Texas, when there were genuine issues of material fact
that the Decedent's homestead was the family ranch in
Medina County? ….................................................................. 20
4 Whether the trial court erred in finding as a matter of law
that Douglas Ulbrich voluntarily abandoned and
discontinued use of the Texas Constitution's Survivor
Homestead located at 3939 Starhill, San Antonio, Texas,
when there were genuine issues of material fact that the
Decedent's homestead was the family ranch in Medina
County? ….............................................................................. 21
5 Whether the trial court erred in finding as a matter of law
that Douglas Ulbrich cannot transfer the Texas
Constitution's Survivor Homestead to any other property? …. 32
CONCLUSION and PRAYER……………………….…………….. 45
CERTIFICATION ………………………………………………..… 45
CERTIFICATE OF COMPLIANCE ..…………………….…...…. 45
CERTIFICATE OF SERVICE …………………………….…...…. 46
iii
INDEX OF AUTHORITIES
CASES PAGE(S)
Andrews v. Security Nat. Bank of Wichita Falls
50 S.W.2d 253 (Tex. 1932) ….................................................... 35
Bahn v. Starcke
34 S.W. 103 (59 Am. St. Rep. 40) …........................................ 37
Blake v. Fuller
184 S.W.2d 148 (Tex.Civ.App. 1944) ….................................. 31, 33
Blum v. Gaines
57 Tex. 119 (1882) …................................................................ 25, 38
Brown v. Reed
48 S.W. 537 (Tex.Civ.App.1898, writ ref'd) …......................... 24
Carson v. McFarland
206 S.W.2d 130
(Tex.Civ.App.--San Antonio 1947, writ ref'd) …....................... 12
Casso v. Brand
776 S.W.2d 551 (Tex. 1989) ….................................................. 10
Clift v. Kaufman & Runge
60 Tex. 64 (1883) …................................................................... 24
Cobbs v. Coleman
14 Tex. 594 (1855) …................................................................. 12
Cocke v. Conquest
35 S.W.2d 673 (1931) ….................…....................................... 29
De Ayala v. Mackie
193 S.W.3d 575 (Tex 2006) …................................................... 14, 15
iv
CASES PAGE(S)
Foley v. Holtkamp
66 S.W. 891 (Tex.Civ.App.Galveston, 1902, writ ref.) …......... 30
George v. Taylor
296 S.W.2d 620
(Tex.Civ.App.--Fort Worth 1956, writ ref'd n.r.e.) …................ 25
Good v. Good
293 S.W. 621, 623 (Tex.1927) …............................................... 25
Hickman v. Hickman
149 Tex. 439, 234 S.W.2d 410 (1950) …................................... 12
Hill v. Aldrich
242 S.W.2d 465
(Tex.Civ.App.--San Antonio 1951, writ dism'd) ….............. 25
Hunter v. Clark
687 S.W.2d 811 (Tex.App. —San Antonio 1985) …........... 24, 26
In the Estate of Consuella Perkins Ulbrich, deceased
04-12-00514-CV
(Tex. Civ. App. - San Antonio, January 15, 2014) .. 13, 15, 16, 18, 19
Jenkins v. Hutchens
287 S.W.2d 295
(Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.) …...................... 24
Kessler v. Draub
52 Tex. 575 (36 Am. Rep. 727) …............................................... 28
Lehmann v. Har-Con Corp.
39 S.W.3d 191, 192 (Tex. 2001) …......................................... 14
Lindsley v. Lindsley
139 Tex. 512, 163 S.W.2d 633 (1942) …..................................... 25
v
CASES PAGE(S)
Provident Life & Accident Insurance Co. v. Knott
128 S.W.3d 215-216 (Tex. 2003) …......................................... 10
Majeski v. Estate of Majeski
163 S.W.3d 102 (Tex. App. - Austin 2005, no pet.) …............. 16, 17, 18
McGaughey et al. v. American Nat. Bank
92 S.W. 191, , writ denied …...................................................... 31
Petrus v. Cage Brothers
128 S.W.2d 537
(Tex.Civ.App.--San Antonio 1939, writ ref'd) …....................... 25, 26
Pressley's Heirs v. Robinson
57 Tex. 453, 460 (1882) …........................................................... 25
Rancho Oil Co. v. Powell
175 S.W.2d 960 (1943) …........................................................... 25
Ratliff v. Smith
178 S.W.2d 138, 141 (Tex.Civ.App. 1943) …........................... 41
Salmons v. Thomas
62 S.W. 102 (1901, no writ) ….................................................... 25
Sargeant v. Sargeant
19 S.W. 382 (Tex.Civ.App.--Fort Worth 1928, no writ) ….......... 25
Schneider v. Bray
59 Tex. 668 (1883) ….................................................................... 29
Shippey et al. v. Hough
47 S.W. 672 (Civ. App. Texas 1898), writ refused …................... 32
Simank v. Alford
441 S.W.2d 234 (Tex.Civ.App. —Austin 1969) …...................... 27 28 29
vi
CASES PAGE(S)
Sparks v. Robertson
203 S.W.2d 622 (Tex.Civ.App. Austin 1947, writ ref'd) …...... 26
Spencer v. Schell
173 S.W. 867 (1915) ….............................................................. 24
Tiboldi v. Palms
78 S.W. 726, aff'd 79 S.W. 23 (1904) ….................................... 25
Trawick v. Harris
8 Tex. 312 (1852) …................................................................... 29
White v. Blackman
168 S.W.2d 531
(Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.) ….............. 26
Wicker v. Rowntree
185 S.W.2d 150
(Tex.Civ.App.--Amarillo 1945, writ ref'd w.o.m.) …................. 24
Will. v. Estate of Williams
548 S.W.2d 492 (Tex.Civ.App. —Austin 1977) ….................... 42
Will. v. Williams
569 S.W.2d 867 (Tex. 1978) …................................................... 26
Woods v. Alvarado State Bank
19 S.W.2d 35 (1919) …........................................................... 29, 36, 37
STATE STATUTES AND RULES PAGE(S)
Texas Constitution, Sec. 52, Art. 16 …........................................ 35
TEX. CONST. art. XVI, § 52 ….................................................... 24
Texas Probate Code § 271(b) ….............................. 8, 9, 10, 13, 21, 22, 23
vii
STATE STATUTES AND RULES PAGE(S)
Tex.Prob.Code Ann. §§ 271, 272, 283, 284 (1956) …................... 26
Tex.Prop.Code Chapter 41 …........................................................ 8
TRAP Rule 25 …........................................................................... 2
Vernon's Ann.Tex.Const. Art. 16, § 52 (1955) …........................ 42
TREATISES PAGE(S)
The Widow's Exemption in Texas, 25 Baylor L.Rev. 346 (1973) .. 26
viii
04-14-00812-CV
IN THE COURT OF APPEALS FOR
THE FOURTH DISTRICT OF TEXAS
SITTING AT SAN ANTONIO
IN THE ESTATE OF CONSUELLA PERKINS ULBRICH
_________________________________________________________________
On appeal from Probate Court No. One, Bexar County, Texas
Honorable Polly Jackson Spencer, presiding
APPELLANT'S BRIEF
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:
Now comes, Douglas J. Ulbrich (“Douglas”), and files his brief appealing
the Order granting summary judgment entered on November 5, 2014, and in
support would show:
STATEMENT OF CASE
This is an appeal by Douglas J. Ulbrich, who is the surviving spouse of
Consuela Perkins Ulbrich, deceased, and the record owner of a 160 acre ranch in
Medina County, Texas, which he has designated as his probate homestead. This
appeal is from an Order of Judge Polly Jackson Spencer, Probate Court No. 1,
Bexar County, Texas granting summary judgment. [CR1 269-270]. The summary
1
judgment, was signed on November 5, 2014. [CR1 269-270]. Ulbrich timely filed
a notice of appeal on November 21, 2014. The Clerk's docket sheet is attached at
Appendix Tab 1.
STATEMENT OF JURISDICTION
Douglas files this appeal pursuant to TRAP Rule 25. Douglas submits that
timely filed a notice of appeal [CR1 271-273] on November 24, 2014, he
requested preparation of the Clerk's Record [CR1 274-276] on November 25,
2014, and he has complied with all conditions precedent to invoking the
jurisdiction of the Fourth Court of Appeals.
STATEMENT REGARDING THE RECORD
The Clerk’s Record consisting of two volumes has been filed. There was no
Reporter's Record for the hearing on the motion for summary judgment.
ISSUES PRESENTED
1 Whether the trial court granted summary judgment in error, when there were
genuine issues of material fact as to each element of Douglas' claim to set aside his
ranch as his rural homestead?
2 Whether the trial court erred in finding as matters of law that the homestead
of the Decedent was 3939 Starhill, San Antonio, Texas, when there were genuine
2
issues of material fact that the Decedent's homestead was the family ranch in
Medina County?
3 Whether the trial court erred in finding as a matter of law that the Texas
Constitution's Survivor Homestead granted to Douglas Ulbrich was 3939 Starhill,
San Antonio, Texas, when there were genuine issues of material fact that the
Decedent's homestead was the family ranch in Medina County?
4 Whether the trial court erred in finding as a matter of law that Douglas
Ulbrich voluntarily abandoned and discontinued use of the Texas Constitution's
Survivor Homestead located at 3939 Starhill, San Antonio, Texas, when there
were genuine issues of material fact that the Decedent's homestead was the family
ranch in Medina County?
5 Whether the trial court erred in finding as a matter of law that Douglas
Ulbrich cannot transfer the Texas Constitution's Survivor Homestead to any other
property?
SUMMARY JUDGMENT EVIDENCE
1 Homestead Affidavit of Douglas Ulbrich, dated April 11, 2011 [CR1 123];
2 Homestead Affidavit of Douglas Ulbrich, dated January 10, 2012 [CR1 124-
127];
3
3 Affidavit of Douglas Ulbrich, dated September 24, 2012 [CR1 173-182];
4 Affidavit of Mary Dahlman, dated December 17, 2012 [CR1 146-151];
5 Affidavit of Al Cargen, dated December 17, 2012 [CR1 134-139];
6 Affidavit of Carolyn Watson, dated December 17, 2012 [CR1 140-145];
7 Formal Bill of Exceptions with exhibits and affidavit, dated 9-24-12 [CR1
156-172];
8 Verified Supplemental Formal Bill of Exceptions w/exhibits dated 10-3-12
[CR1 246-268];
9 Affidavit of Karon Robertson, dated 10-1-10 [CR1 128-130];
10 Affidavit of Gary Neubauer, dated 9-27-10 [CR1 131-133];
11 Homestead photos [CR1 183-245];
12 Community National Bank letter with attachment, dated 12-10-10 [CR1
262-264];
13 Medina County Appraisal District Application for Homestead Exemption
2011 [CR1 253-261]; and
14 Deed to 80 acres from Laverne Raish, dated 2-1-79 [CR1 265-268].
15 Rule 11 agreement, dated August 26, 2014, regarding exempt personal
property. [CR2 25-26].
4
FACTUAL BACKGROUND
Douglas and Consuella Ulbrich were married on October 8, 1966 in Kerr
County, Texas. They raised her three children from a prior marriage. Douglas was
a rancher and managed a number of cattle ranches and hunting leases. Consuella
owned and managed a small chemical company and other businesses. At the time
of their marriage they each owned separate property, and they kept separate bank
accounts and retirement accounts associated with the businesses they owned and
operated prior to and during their marriage.
In August 1973, Douglas and Consuella bought a house at 3939 Starhill in
San Antonio. In 1978, Douglas and three of his siblings each inherited a 25%
undivided interest in 320 acres of his parents’ ranch in Medina County, Texas. In
February 1979, Douglas bought his sister Laverne’s 25% undivided interest in the
ranch. [CR1 124]. In March 1979, Douglas and his other two siblings partitioned
their respective ½ undivided interests in the 320 acre ranch. Douglas and
Consuella ended up with the 160 acres described in the Partition Deed recorded at
Vol. 288, Pages 57-60 filed in the Deed Records of Medina County, Texas on
April 5, 1979. [CR1 125].
Although they divided their time between their house in San Antonio and
5
the ranch home in Medina County, they considered the family ranch to be their
rural homestead from the time Douglas inherited his share from his parents and
purchased his sister Laverne’s undivided interest. They spent most of their time at
their ranch home. Douglas built an 8’ high game fence around the entire 160 acre
tract and raised Axis deer. They had a deer hunting operation, farmed, and raised
goats. The family rural homestead was a principal source of family income after
Douglas retired from his other ranching operations.
Douglas and Consuella planned to build a new home on a knoll with a nice
view of the surrounding land, and Douglas cleared about 30 acres for a home site.
However, when Consuella became ill towards the end of her life, they spent more
of their time in their San Antonio residence, and they never got around to building
their dream home at the ranch. Nevertheless, now that Consuella is buried in the
Ulbrich family plot in Hondo, Medina County, Douglas still plans to build the
hilltop home on the home site that he cleared.
In 1979, Douglas inherited an undivided interest in his mother’s two houses
in Hondo. He acquired the remaining interest in his mother’s houses by gift or
purchase from his siblings. One of the houses in Hondo was a rent house and the
other was demolished and not rebuilt.
6
So, at the time of Consuella’s death on August 22, 2010, Mr. and Mrs.
Ulbrich owned three residences, each of which was a potential homestead.
However, they considered their 160 acre family ranch home to be their rural
homestead, and they never abandoned it. [CR1 125]. This fact is supported by the
affidavits of Karon Robertson and Gary Neubauer as well as Douglas Ulbrich.
[CR1 128 ¶ 2], [CR1 131 ¶ 2].
For a number of years, Douglas and Consuella claimed a homestead
property tax exemption for their residence in San Antonio, but that exemption was
ended in 2010. The fact that Mr. and Mrs. Ulbrich claimed a homestead property
tax exemption on their San Antonio residence was not an abandonment of their
Medina County rural homestead. After Consuella’s death, Douglas filed an
Application for Residential Homestead Exemption with the Medina County
Appraisal District in April 2011 for tax year 2011.
Mr. and Mrs. Ulbrich also owned furnishings and other personal property as
well as motor vehicles, ranch vehicles, equipment and implements, most of which
was exempt property protected from attachment pursuant to the Texas
Constitution. Mr. Ulbrich has timely filed an affidavit in support of his application
to set aside exempt property, which describes his property that he claims to be
7
exempt from partition, sale or distribution pursuant to his rights as a surviving
spouse under the Texas Constitution, Texas Property Code and Texas Probate
Code, Section 271(b).
In April 2011, after Consuella’s death but before Court approval of an
inventory and list of claims, Mr. Ulbrich filed an affidavit in the Deed Records of
Medina County voluntarily designating his home and rural property in Medina
County, Texas as his homestead pursuant to Tex.Prop.Code Chapter 41. [CR1
152-155] He filed another affidavit declaring his Medina County rural homestead
in January 2012. The voluntarily designation of Douglas Ulbrich’s homestead
before the preparation and court approval of an inventory of the property of Mrs.
Ulbrich’s estate has been a matter of public record for the past year.
Douglas' rural homestead is described as 160 acres of land together with
improvements including a residence situated about 10 miles N 16 degrees west of
Hondo, Medina County, Texas, out of Survey No 419, Abstract No. 1174, H. E. &
W. T. R.R. Co., original Grantee, being the South portion of the division of a
certain 404.58810 acre tract of land surveyed by John Poerner and Associates on
March 23, 1977, said 404.58810 acre tract of land being the residue of a certain
415 acre tract of land conveyed by Deed to J. E. Ulbrich from Willie Schlentz,
8
dated February 15, 1947, as recorded in Volume 138 on page 611 of the Deed
Records of Medina County, Texas, and being more particularly described by metes
and bounds in said Deed, which is incorporated herein by reference for all
purposes. [CR1 125 ¶¶ 5 & 6] .
Douglas would show that his home in Medina County qualifies as his
homestead because title to the property is in his name; he resides at the property as
his home; he has used the property as his rural home for many years; he considers
the property to be his only homestead; the homestead includes a house and 160
acres; he has declared his intention for the property to be his homestead; he does
not claim any other property to be his homestead; he has advised the Medina
County Appraisal District that he claims the property as his homestead for taxation
purposes; his drivers license shows the homestead as his residence address; and he
has motor vehicles registered at his homestead address. [CR1 125 ¶¶ 7-10] .
Douglas claims a right as surviving spouse to use or occupy the rural
homestead for the rest of his life pursuant to Tex.Prop.Code Section 283, and he
has timely filed an application to set aside his exempt homestead pursuant to the
Texas Probate Code, Section 271(b). [CR1 152-155].
9
STANDARD OF REVIEW
In order to establish a right to a traditional motion for summary judgment,
the movant must show that there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Provident Life & Accident
Insurance Co. v. Knott, 128 S.W.3d 215-216 (Tex. 2003). If the movant meets
this burden, then the non-movant must produce summary judgment evidence to
raise a genuine issue of material fact. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.
1989). If the non-movant does not succeed in raising a genuine issue of material
fact, then the motion must be granted.
SUMMARY OF ARGUMENT
Douglas claims a right to designate his rural homestead and to have it set
aside for his use and benefit during his lifetime pursuant to the Texas Probate
Code, Section 271 after his wife died intestate.
Douglas submits that he followed the appropriate procedure by applying to
the court to set aside his 160 acre ranch in Medina County, Texas, which he had
occupied and used for homestead purposes during his marriage to the deceased
and designated as his probate homestead by applying to the court to set it aside.
[CR1 152-155]. However, on August 10, 2012, the trial court erroneously signed
10
an Order Awarding Exempt Property and denied Douglas' right to designate his
ranch as his probate homestead. Instead, the trial court erroneously set aside
Douglas' San Antonio residence at 3939 Starhill as his probate homestead. [CR1
20 – Dkt. 00013]. Douglas appealed the trial court's order to the Fourth Court of
appeals, Appeal No. 04-12-00514-CV, and the Order awarding exempt property,
dated August 10, 2012 was reversed and remanded.
After the case was remanded, the parties signed a Rule 11 agreement on
August 26, 2014 setting aside exempt personal property for Douglas' use and
benefit as the surviving spouse. On November 5, 2014, the trial court entered an
Order granting motion to enter an Order concerning truck and automobiles, which
resolved claims to set aside exempt personal property for Douglas' use and benefit
as surviving spouse pending a trial on the merits. [CR1 21 - Docket Entry 00043].
Then, on October 14, 2014, Consuella's heirs filed a motion for summary
judgment requesting an order declaring that Douglas was awarded his residence at
3939 Starhill, San Antonio, Texas as his probate homestead and that he had
abandoned it, when he agreed that it could be sold as non-exempt property owned
in common with Consuella's Estate. The trial court granted the heirs' motion for
summary judgment in error on November 5, 2014, notwithstanding genuine issues
11
of material fact to the contrary. [CR1 21 – Docket Entry 00044].
Douglas filed a notice of appeal and requested a temporary stay before the
trial court had an opportunity to sign orders directing him to turn over keys to his
ranch to Consuella's heirs and appointing commissioners to make a
recommendation to partition in kind the 25% undivided interest in the 160 acre
ranch, which is owned by Consuella's estate.
Therefore, Douglas requests this Court to reverse the trial court's summary
judgment and remand the matter for a jury trial on the merits of his claim.
ARGUMENT AND AUTHORITIES
Exemptions statutes have been traditionally construed liberally by our
courts. See Cobbs v. Coleman, 14 Tex. 594 (1855); Hickman v. Hickman, 149 Tex.
439, 234 S.W.2d 410 (1950). They are never restricted in their meaning and effect
so as to minimize their operation upon the beneficent objects of the statutes, and
questions regarding the extent of exemptions are generally resolved in favor of the
one claiming exemption. Id., 234 S.W.2d at 413. Carson v. McFarland, 206
S.W.2d 130, 132 (Tex.Civ.App.--San Antonio 1947, writ ref'd).
1 The trial court granted summary judgment in error because there were
genuine issues of material fact as to each element of Douglas' claim to set
aside his ranch as his probate homestead.
12
In its opinion, dated January 15, 2014, in the prior appeal in this case this
Court stated: “Before the inventory, appraisement, and list of claims is approved
or before the filing of the affidavit in lieu of the inventory, appraisement, and list
of claims, a surviving spouse may apply to the probate court pursuant to section
271(b) of the Probate Code “to have exempt property, including the homestead, set
aside by filing an application and a verified affidavit listing all the property that
the applicant claims is exempt.” See TEX. PROB. CODE ANN. § 271(b) (West
Supp. 2012). An applicant under section 271(b) “bears the burden of proof by a
preponderance of the evidence at any hearing on the application.” Id. § 271(c).
The probate court “shall set aside property of the decedent's estate that the court
finds is exempt.” Id.” In the Estate of Consuella Perkins Ulbrich, deceased, 04-
12-00514-CV, at 13 (Tex. Civ. App. - San Antonio, January 15, 2014).
Douglas submits that he is a surviving spouse, and he filed an application
and a verified affidavit listing all the property that he claimed was exempt
requesting the probate court to set aside the exempt property, including the
homestead, before the inventory, appraisement, and list of claims was approved or
before the filing of the affidavit in lieu of the inventory, appraisement, and list of
claims pursuant to section 271(b) of the Probate Code. Douglas submits that he
13
demanded a jury trial and paid a jury fee, but he has not yet had a trial on the
merits of his probate homestead claim. Therefore, Douglas submits that the trial
court granted summary judgment in error because there are genuine issues of
material fact as to his probate homestead claim.
Douglas further submits that the summary judgment, dated November 5,
2014, [CR 269-270], was an appealable order from which he could appeal. This
Court has stated: “Generally, appeals may be taken only from final judgments.
De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex 2006). “Probate proceedings are
an exception to the 'one final judgment' rule; in such cases 'multiple judgments
final for purposes of appeal can be rendered on certain discrete issues.” Id.
(quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001)). “The
need to review controlling, intermediate decisions before an error can harm later
phases of the proceeding has been held to justify this rule.” Id. (quotations
omitted). “Not every interlocutory order in a probate case is appealable, however,
and determining whether an otherwise interlocutory probate order is final enough
to qualify for appeal, has proved difficult.” Id. “In the past, courts relied on a
'substantive right' test to determine whether an ostensibly interlocutory probate
order had sufficient attributes of finality to confer appellate jurisdiction.” Id.
14
Under that test, “once the probate court adjudicated a 'substantial right,' the order
was appealable.” Id. In 1995, the supreme court attempted to clarify this test,
noting “while adjudication of a 'substantial right' was one factor to be considered,
equally important” was “earlier precedent requiring that the order dispose of all
issues in the phase of the proceeding for which it was brought.” Id. Therefore,
“[t]o sidestep 'potential confusion' about the appropriate test for jurisdiction,” the
court adopted the following test:
If there is an express statute, such as the one for complete heirship
judgment, declaring the phase of the probate proceeding to be final
and appealable, that statute controls. Otherwise, if there is a
proceeding of which the order in question may logically be
considered a part, but one or more pleadings are also part of that
proceeding raise issues or parties not disposed of, then the probate
order is interlocutory.
Id.” In the Estate of Consuella Perkins Ulbrich, deceased, supra, at 13.
“In De Ayala v. Mackie, 193 S.W.3d at 578, the supreme court held that the
trial court's order denying a plea to the jurisdiction and refusal to removae an
executor was not appealable. The court explained that “an order denying a motion
to dismiss an entire proceeding for want of subject-matter jurisdiction is more like
a prelude than a finale.” Id. “It certainly does not dispose of a claim that, if
asserted independently, would be the proper subject of a lawsuit.” Id. Moreover,
15
the supreme court explained that “the trial court's order was interlocutory because
it did not dispose of all parties or issues in a particular phase of the proceedings.”
Id. At 579. “Because an order denying a plea to the jurisdiction and refusing to
remove an executor does not end a phase of the proceedings, but sets the stage for
the resolution of all proceedings, the order is interlocutory.” Id.” In the Estate of
Consuella Perkins Ulbrich, deceased, supra, at 13-14.
In support of his arguments, Douglas cites Majeski v. Estate of Majeski, 163
S.W.3d 102 (Tex. App. - Austin 2005, no pet.). In Majeski, the adult daughter and
surviving spouse had a dispute over a tract of land owned by the decedent before
her marriage and on which she and her spouse lived and worked. Id. At 104. The
decedent's surviving spouse claimed a homestead right, while her adult daughter
argued that the rental of portions of the property defeated the spouse's homestead
rights, Id. After an inventory of the estate was filed, the surviving spouse,
claiming a life estate in the property as the decedent's surviving spouse, sought a
judgment declaring the tract of land, including any improvements, rental
properties and business on the tract of land, to be his homestead. Id. at 105. The
decedent's adult daughter countered, asking the court to determine what portion of
the property was the surviving spouse's homestead, and also asking the court to
16
declare “the value and character of all items of personal property” and what assets
should be given to the spouse as the decedent's surviving spouse. Id. She also
asked the court to deduct from the spouse's share of the estate “the value of all
assets not accounted for which were in his possession.” Id. Both sides then
moved for summary judgment on the issue of the homestead status of the property.
Id. The trial court granted summary judgment on the issue of the homestead status
of the property. Id. The trial court granted summary judgment in the adult
daughter's favor, finding that the surviving spouse's homestead did not consist of
the entire tract of land, but only a portion of the land. Id. The surviving spouse
appealed, and the adult daughter argued that the trial court's order was
interlocutory and not an appealable order. Id. The adult daughter emphasized that
the trial court's order was not appealable because it did not address the requests in
her counter-petition relating to the other assets held by the surviving spouse. Id.
The court of appeals disagreed, explaining that the “only dispute at issue at this
stage of the probate proceeding was the homestead status of the property.” Id. At
106. According to the court, although the adult daughter “asserted claims related
to other assets, those questions were separate from the homestead issue.” Id.
Because the “trial court's order made a final resolution of the homestead issue as to
17
the entire tract of land,” the trial court held that the order “concluded a discrete
phase” of the proceedings, and was final and appealable. Id.; In the Estate of
Consuella Perkins Ulbrich, deceased, supra, at 14-15.
Douglas submits that Majeski is on point with this case because the adult
children in this case filed a motion for summary judgment seeking an order that
3939 Starhill, San Antonio had been awarded as Douglas' Texas Constitution's
Survivor Homestead and that he had abandoned it, when he agreed to let it be sold
as non-exempt property. Thus, as in Majeski, the only dispute at issue in the
motion for summary judgment regarding the surviving spouse's section 271
application was the homestead status of the property. Compare id. at 106 with In
the Estate of Consuella Perkins Ulbrich, deceased, supra, at 15-16. On November
5, 2014, the trial court entered an Order resolving Douglas' claim to set aside
exempt personal property pending a trial on the merits pursuant to a Rule 11
agreement among the parties. Then, the trial court granted summary judgment on
the sole remaining exempt property issue related to the probate homestead.
This appeal is distinguished from the prior appeal in this case because
Douglas' section 271 application to set aside the probate homestead was the only
matter that was considered in the summary judgment. In the Estate of Consuella
18
Perkins Ulbrich, deceased, supra, at 15-16. For that reason, the probate court
called its November 5, 2014 order a “summary judgment”, as distinguished from
the prior February 13, 2012 order, which was called a “partial order”. The entire
motion for summary judgment was granted, thereby denying Douglas' probate
homestead claim. The next step would be to appoint special commissioners to
recommend partition and to appoint a receiver to sell the estate's 25% undivided
interest in the 160 acre ranch. Therefore, Douglas submits that the November 5,
2014 summary judgment was an appealable order because it concluded his section
271 probate homestead claim, which was a discrete phase of the proceedings.
Distinguish In the Estate of Consuella Perkins Ulbrich, deceased, supra, at 15-16.
2 The trial court erred in finding as matters of law that the homestead of the
Decedent was 3939 Starhill, San Antonio, Texas because there were
genuine issues of material fact that the Decedent's homestead was the family
ranch in Medina County.
The summary judgment evidence shows that homestead has been located at
the Ulbrich Ranch, 5740 FM 462, Medina County, Texas since 1978, when
Douglas and three of his siblings each inherited a 25% undivided interest in 320
acres of his parents’ ranch in Medina County, Texas. In February 1979, Douglas
bought his sister Laverne’s 25% undivided interest in the ranch. The affidavits and
exhibits attached to Douglas' response to the motion for summary judgment
19
contain direct and circumstantial evidence that his 160 acre Medina County ranch
was his rural homestead during his marriage to Consuella and continued to be his
rural homestead after her death to the present. (Affidavit of Douglas Ulbrich,
dated January 10, 2012 [CR 124-127] at page 125 ¶¶ 8-10, page 226 ¶¶ 11-13)
(Affidavit of Karon Robertson, dated 10-1-10 [CR 128-130] at page 128 ¶ 2)
(Affidavit of Gary Neubauer, dated 9-27-10 [CR 131-133] at page 131 ¶ 2)
(Affidavit of Al Cargen, dated December 17, 2012 [CR 134-139] at page 134 ¶ ¶
4-5, page 135 ¶¶ 6-16, page 136 ¶¶ 17-25) (Affidavit of Carolyn Watson, dated
December 17, 2012 [CR 140-145] at page 140 ¶ ¶ 4-5, page 141 ¶¶ 6-16, page
142 ¶¶ 17-25) (Affidavit of Mary Dahlman, dated December 17, 2012 [CR 146-
151] at page 147 ¶ ¶ 5-16) (Affidavit of Douglas Ulbrich, dated September 24,
2012 [CR 173-182] at page 173 ¶ ¶ 2-4, page 174-179).
3 The trial court erred in finding as a matter of law that the Texas
Constitution's Survivor Homestead granted to Douglas Ulbrich was 3939
Starhill, San Antonio, Texas because there were genuine issues of material
fact that the Decedent's homestead was the family ranch in Medina County.
There is no evidence that the residence at 3939 Starhill, San Antonio, Texas
was granted to Douglas as his Texas Constitution's Survivor Homestead. On
August 10, 2012, the trial court Ordered that the homestead located at 3939
20
Starhill, San Antonio, Texas shall be set aside for the benefit of Douglas J. Ulbrich
as the surviving spouse homestead, but this Order was reversed on appeal.
4 The trial court erred in finding as a matter of law that Douglas Ulbrich
voluntarily abandoned and discontinued use of the Texas Constitution's
Survivor Homestead located at 3939 Starhill, San Antonio, Texas because
there were genuine issues of material fact that the Decedent's homestead
was the family ranch in Medina County.
Douglas submits that the affidavits attached to his response to the motion
for summary judgment, referenced above, show direct and circumstantial evidence
that Consuella and his homestead was the family ranch, which he timely
designated as his probate homestead pursuant to the Texas Probate Code, § 271
prior to approval of an inventory. Conversely, Douglas submits that the affidavits
attached to his response to the motion for summary judgment, referenced above,
show direct and circumstantial evidence that Consuella's and his homestead was
not 3939 Starhill, San Antonio, Texas.
Therefore, Douglas submits that the summary judgment evidence shows that
his homestead was his 160 acre ranch in Medina County, Texas, not 3939 Starhill,
San Antonio, Texas, and he did not abandon his probate homestead. Alternatively,
the summary judgment evidence establishes a genuine issue of material fact
whether Douglas' homestead was his 160 acre ranch in Medina County, Texas, not
21
3939 Starhill, San Antonio, Texas, and that he did not abandon his probate
homestead. At the time of his wife's death, Mr. Ulbrich owned four residences, of
which two were located at the Ulbrich Ranch, one was in Hondo, and the other
was in San Antonio. Mr. and Mrs. Ulbrich always considered the Ulbrich Ranch
to be their homestead, notwithstanding their application for a property tax
exemption for their house in San Antonio, Bexar County, Texas.
The Texas Property Code, § 271. EXEMPT PROPERTY TO BE SET
APART provides as follows: (a) Unless an affidavit is filed under Subsection (b)
of this section, immediately after the inventory, appraisement, and list of claims
have been approved, the court shall, by order, set apart: (1) the homestead for the
use and benefit of the surviving spouse and minor children; and (2) all other
property of the estate that is exempt from execution or forced sale by the
constitution and laws of this state for the use and benefit of the surviving spouse
and minor children and unmarried children remaining with the family of the
deceased. (b) Before the approval of the inventory, appraisement, and list of
claims: (1) a surviving spouse or any person who is authorized to act on behalf of
minor children of the deceased may apply to the court to have exempt property,
including the homestead, set aside by filing an application and a verified affidavit
22
listing all of the property that the applicant claims is exempt; and (2) any
unmarried children remaining with the family of the deceased may apply to the
court to have all exempt property other than the homestead set aside by filing an
application and a verified affidavit listing all of the other property that the
applicant claims is exempt. (c) An applicant under Subsection (b) of this section
bears the burden of proof by a preponderance of the evidence at any hearing on the
application. The court shall set aside property of the decedent's estate that the
court finds is exempt.
Douglas submits that he complied with the requirements of Texas Probate
Code § 271(b) by timely filing his application on January 17, 2012 to set aside
exempt property including his rural homestead supported by his verified affidavit
listing all the property that he claims is exempt prior to the Court’s approval of an
inventory, appraisement and list of claims. Id. [CR2 30 – Dkt. 00055] Upon
remand from the first appeal, Douglas filed a motion to set aside exempt personal
property on May 27, 2014. [CR2 9-13] On August 26, 2014, the parties signed a
Rule 11 agreement to set aside exempt personal property pending contest. [CR2
25-26] On November 5, 2014, the trial court entered an Order concerning truck
and automobiles pursuant to the parties' Rule 11 agreement. [CR2 47 – Dkt. Entry
23
00042] Then, the trial court granted summary judgment on the sole remaining
issue concerning Douglas' probate homestead claim. [CR2 47 – Dkt. Entry
00044]
Douglas also submits that his voluntary designation of his rural homestead
after the death of his wife is authorized by controlling case law. Hunter v. Clark,
687 S.W.2d 811, 814-815 (Tex.App. —San Antonio 1985) summarizes the rights
of the surviving spouse as follows:
The language of the Constitution is plain. The surviving spouse has
the same homestead rights as both spouses had prior to the death of one;
and this is true whether the survivor be the husband or the wife. Brown
v. Reed, 48 S.W. 537, 538 (Tex.Civ.App.1898, writ ref'd).
The homestead provision is intended to relate to the rights of heirs
and the surviving husband or wife, as between themselves, to
the homestead property. Spencer v. Schell, 107 Tex. 44, 173 S.W.
867 (1915). TEX. CONST. art. XVI, § 52 gives to the surviving spouse
the right to use and occupy the homestead, even though it was the
separate estate of the deceased. Jenkins v. Hutchens, 287 S.W.2d 295,
298 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.). The deceased may
not defeat this right by devising the property before death. Wicker v.
Rowntree, 185 S.W.2d 150, 152 (Tex.Civ.App.--Amarillo 1945, writ
ref'd w.o.m.).
Even if the survivor (Hunter) had a homestead right of his own
when he
Page 815
married, and at the death of deceased, he still owned and controlled
that property, the survivor has a right to the subject homestead. Clift v.
24
Kaufman & Runge, 60 Tex. 64 (1883); Pressley's Heirs v. Robinson, 57
Tex. 453, 460 (1882). This is true even though there is no doubt that
Hunter owned a house where he could presently be living. The
surviving spouse may use and occupy the homestead so long as he or
she elects to do so. Tiboldi v. Palms, 34 Tex. Civ. App. 318, 78 S.W. 726,
aff'd 97 Tex. 414, 79 S.W. 23 (1904). This applies against the creditors
or heirs of the deceased. Blum v. Gaines, 57 Tex. 119, 122 (1882).
The homestead right is a right which vests immediately upon the
death of the spouse and continues unless abandoned. Good v. Good, 293
S.W. 621, 623 (Tex.1927). The surviving spouse has the right to live on
the premises for the remainder of his life without the permission of the
deceased spouse's heirs. Hill v. Aldrich, 242 S.W.2d 465, 466
(Tex.Civ.App.--San Antonio 1951, writ dism'd). Testamentary
disposition by the deceased may not destroy the right of the surviving
constituent family members to use and occupy the homestead. Lindsley
v. Lindsley, 139 Tex. 512, 163 S.W.2d 633, 636 (1942).
The homestead right is a personal privilege with the attributes and
incidents of a life estate. Petrus v. Cage Brothers, 128 S.W.2d 537, 538
(Tex.Civ.App.--San Antonio 1939, writ ref'd). It is in the nature of
a life estate analogous to that of a life tenant. Rancho Oil Co. v.
Powell, 142 Tex. 63, 175 S.W.2d 960, 963 (1943). The surviving spouse
is not liable for rent payable to the heirs. Pressley's Heirs v. Robinson,
supra at 458. But the surviving spouse is not entitled to reimbursement
for improvements. During the continuation of his estate he is chargeable
with the expenses of upkeep of the property. Sargeant v. Sargeant, 19
S.W. 382, 385 (Tex.Civ.App.--Fort Worth 1928, no writ). See George v.
Taylor, 296 S.W.2d 620, 624 (Tex.Civ.App.--Fort Worth 1956, writ
ref'd n.r.e.) as to rights of heirs. Id.
The Court further decided as follows:
The payment of taxes by the devisee under Katherine's will is not a
showing of Hunter's abandonment of the homestead rights. Salmons v.
Thomas, 25 Tex. Civ. App. 422, 62 S.W. 102, 104 (1901, no writ).
Similarly, this would not constitute waiver by Hunter. Moreover,
the designation by Hunter of his
25
Page 816
former homestead property for taxation purposes, while it may be
challenged by the taxing authority, is not such conduct which will
demonstrate waiver.
In 1978, the Texas Supreme Court decided the case of Williams v. Williams,
569 S.W.2d 867 (Tex. 1978) and ruled as follows:
Article XVI, section 52 of the Texas Constitution provides that
the homestead shall not be partitioned among the heirs of the deceased
during the lifetime of the surviving husband or wife, or so long as the
survivor may elect to use or occupy the same as a homestead. [1] This is
sometimes referred to as the probate homestead. O. Speer, Texas Family
Law § 36:62, at 208 (5th ed. 1977). This homestead right of the survivor
has been held to be one in the nature of a legal life estate or life estate
created by operation of law. See Sparks v. Robertson, 203 S.W.2d
622 (Tex.Civ.App. Austin 1947, writ ref'd); White v. Blackman, 168
S.W.2d 531 (Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.); Petrus
v. Cage Bros., 128 S.W.2d 537 (Tex.Civ.App. San Antonio 1939, writ
ref'd); Comment, The Widow's Exemption in Texas, 25 Baylor L.Rev.
346, 347 (1973). The Probate Code requires that the
probate homestead and certain exempt personal property [2] be set aside
to the surviving spouse. Tex.Prob.Code Ann. §§ 271, 272, 283, 284
(1956). These rights are provided by law for the protection of the family
and to secure a home for the surviving spouse.
Therefore, Douglas submits that he is entitled to claim his 160 acre rural
homestead, which is less than the maximum 200 acres for a survivor’s rural
homestead. He also submits that he did not waive his right to claim survivorship
rights in his rural homestead by applying for homestead exemption benefits for his
26
Bexar County residence for taxation purposes. Hunter v. Clark, 687 S.W.2d 811,
814-815 (Tex.App. —San Antonio 1985).
The facts in the instant case are somewhat similar to the facts in Simank v.
Alford, 441 S.W.2d 234 (Tex.Civ.App. —Austin 1969), which involved an urban
residence that was claimed as an exempt homestead for property tax purposes and
a rural homestead where the family lived only for a brief time.
“When Elmo R. J. Simank died intestate in 1963 he owned 67.9 acres
of farm land in Williamson County which is the subject of this
lawsuit…
The sole question is whether the undivided one-half interest in the
land awarded to Simank's mother, brother, and sister by the trial court is
subject to the homestead interest of Simank's widow. Id., at 234.
The cause was tried before the court in March, 1968, resulting in a
judgment entered October 31, 1968, awarding an undivided one-half
interest in the land to plaintiffs and an undivided one-half to the widow,
with the further provision that the interest of plaintiffs be '* * * subject
to homestead interest of Mildred Simank (the widow) in and to said
property * * * and that the said Mildred Simank * * * have and recover
a homestead interest in
Page 235
and to the one-half undivided interest of said property owned by * *
*' plaintiffs.
Elmo Simank bought the 67.9 acres of land in 1954, prior to his
marriage in December, 1959, to Mildred Simank, appellee. After their
marriage, Simank and his wife lived in a house owned by his wife in
Austin until January, 1961.
27
Mildred Simank testified that she and her husband moved to the
67.9-acre farm where they lived 'for a little while' before moving about
200 yards to the recently remodeled home of Ella Simank, mother of
Elmo Simank, whose farm adjoined the 67.9-acre tract. Ella Simank
testified that her son, Elmo, and his wife, Mildred, never did live in the
house on Elmo's farm, but that they started living with her early in 1961
and stayed there until his death June 4, 1963.
Mildred Simank testified without contradiction that she and Elmo
Simank moved from her house in Austin in January, 1961, intending
'never to live there again' and that their intentions when moving were
that, 'We were going to live on his land.' The record also shows that
Simank and his wife never returned to the Austin house, that Mildred
Simank did not return to it after her husband's death, and that in 1966
the place was sold. Id.
After Elmo Simank's death his widow moved back to Austin, where
she was employed, and rented the farm to Gene Devine and later to Lee
Hurst Alford, who raised crops on the land. Mildred Simank testified
that she and her husband 'claimed this 67.9-acre tract as a home' and that
she believed it was in the years 1961 and 1962 that her husband claimed
the tract 'as a homestead.' This testimony was given during inquiry
under cross-examination regarding claim of a 'home for tax purposes' on
the Austin property by Mildred Simank prior to and during occupancy
of the Austin place by her and her husband before moving to the farm.
Mildred Simank testified that after her husband's death she left to her
attorney matters pertaining to renting the land and all matters pertaining
to the estate. She stated that she did not know whether the land had been
claimed as her home 'since Elmo's death.'
Mildred Simank testified that she claimed the Austin house as a
homestead prior to her marriage and during the year or more she and her
husband occupied it prior to moving to his farm in January, 1961 . She
did not change this designation with the tax collector until a year before
she sold the place. After she and her husband moved from the Austin
house to the farm, Mildred Simank never lived in the Austin residence.
After her husband's death, when she returned to Austin, Mrs. Simank
28
lived with a friend on Enfield Road before moving to an apartment
house where she resided at the time of trial.
There is not sufficient evidence to show abandonment of the
homestead by Mildred Simank after her husband's death, and this
contention is not sustained. Jolesch and Chaska Co. v. Hampton, 297
S.W. 271(Tex.Civ.App., Waco, 1927, writ ref.) and cases there cited.
Id., at 236
Mildred Simank testified that in 1960, the year following her
marriage to Elmo Simank, they considered plans to build a home on his
land. Improvements were made, including a roof, on the old house
already on the land, apparently in that same year, for in January, 1961,
they left Austin, where they had lived since marrying, and lived for a
while in their house on his land. However brief this occupancy may
have been, there was occupancy, followed by moving across the
property line into his mother's home with her. They continued to
cultivate the 67.9 acres, and Elmo made a claim of homestead,
beginning with the year they moved into their house, until the year he
was fatally injured in an accident.
The evidence, when given interpretation favorable to appellees, as
required by law, is sufficient to show establishment of a homestead by
Simank and his wife on the 67.9 acres in Williamson County.
Although the courts of Texas have sought to 'prevent this most
valuable right from being converted into an instrument of fraud' with
respect to the claims of creditors (see Gardner v. Douglass, supra), the
Supreme Court has followed the generally accepted rule that homestead
laws are to be liberally construed to effectuate their beneficent
purpose. Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d
35 (1919);Cocke v. Conquest, 120 Tex. 43, 35 S.W.2d
673 (1931); Trawick v. Harris, 8 Tex. 312 (1852); Schneider v. Bray, 59
Tex. 668 (1883). Application of the rule in this case does no violence to
the claim of a creditor, since none is involved, but only extends to the
widow enjoyment of a homestead right in the land until such time as
that right may expire.
29
As was said in Foley v. Holtkamp, 28 Tex. Civ. App. 123, 66 S.W.
891 (Galveston, 1902, writ ref.), 'We do not mean to say the case is a
strong one, or that, if primarily presented to us, we would have reached
the same conclusion,' but under the testimony we are unable to say that
the implied
Page 238
findings of the trial court 'are so against the weight of the evidence as to
require our interference.'
The facts supporting Douglas’ homestead claim are stronger than Mrs.
Simank’s. Douglas and Consuella lived at the family ranch home for more than 30
years, while they also maintained a residence in San Antonio. One year they let
one of Consuella’s daughters live at the San Antonio house with her family, and
Douglas and Consuella stayed at their ranch home. They planned to build a new
home at the ranch, and Douglas made preparations by clearing a 30 acre homesite.
After Consuella’s death, Douglas let his tax exemption lapse in Bexar County and
applied for a homestead tax exemption in Medina County. Now he spends all of
his time at the ranch tending his goats, farming and ranching.
Dedication of a rural homestead is accomplished by occupancy thereof by
the head of the family as a place of residence, and the use thereof for the support
of the family. Arts. 3841-3859, Vernon's Ann.Civ.St., govern the voluntary
designation. Under these articles the head of the family has a right to designate
30
any particular two hundred acres as a homestead, out of a larger tract or tracts of
land; and, where the homestead has been designated, the excess of such tract or
tracts over and above the homestead exemption, is subject to partition from such
homestead, and sale under proper orders of a court having jurisdiction. If the
owner of a homestead has failed to designate and set same aside, he, nevertheless
may still have the right of homestead exemption. Blake v. Fuller, 184 S.W.2d 148,
151 (Tex.Civ.App. 1944).
The Court in Blake went on to state as follows:
“ It is elementary, we think, that where a rural homestead is
established on a tract of land in excess of 200 acres, that the sale of the
excess does not affect the homestead rights in the retained land; and,
where the head of a family is residing on a tract of more than 200 acres,
subjecting the whole of such tract to uses which impress it with the
homestead character, he has the right to determine and designate the
particular 200 acres as his homestead, provided that in so doing, the 200
acres so designated shall include his mansion house and the appurtenant
lands and improvements actually and directly used in connection
therewith by himself and family for the purpose of making same their
home; and that, in exercising his right of designation, he acts in good
faith so as to substantially secure to himself and family the benefits
which the Constitution intended to give them. McGaughey et al. v.
American Nat. Bank, 41 Tex. Civ. App. 191, 92 S.W. 1003, writ denied.”
Id.
Douglas submits that, like the surviving spouse in Blake, who had more
then 200 acres, he had more real property than his maximum probate homestead
31
because he had a house in San Antonio, Bexar County; a house in Hondo, Medina
County; and home and rent house at his ranch in Medina County. Therefore, upon
the death of his wife, Douglas had a right to voluntarily designate his rural
homestead, which he did by filing an affidavit in the deed records in Medina
County. Blake v. Fuller, 184 S.W.2d 148, 151 (Tex.Civ.App. 1944).
5 The trial court erred in finding as a matter of law that Douglas Ulbrich
cannot transfer the Texas Constitution's Survivor Homestead to any other
property.
Where the husband and wife have so designated and occupied
the rural homestead, and the wife, after the husband's death, continuously used and
asserted homestead rights therein, on sale of the excess, the wife would have a
right to again set aside the homestead as designated by them, or change, alter and
substitute the designation for another. Blake v. Fuller, 184 S.W.2d 148, 151
(Tex.Civ.App. 1944). The law does not require the homestead designation to be in
any particular form, or that the owners may not change the designation when once
made. Id. The right of selection necessarily means the right to take such, and
describe such as the owner may desire. Id., citing, Shippey et al. v. Hough, 47 S.W.
672 (Civ. App. Texas 1898), writ refused.
32
In Shippey, it was contended by counsel for the appellants that the widow's
homestead right, as against the claim of appellants, was limited to the 30 or 40
acres of land in actual use by Mrs. Hough and her husband at the time of the
latter's death. The Court ruled against this contention on a former appeal in this
case, and it saw no reason to change the ruling then made. Hough v. Shippey (Tex.
Civ. App.) 40 S.W. 332. The Court went on to state that it could not be denied that
if the husband were still alive, and asserting a homestead right, he could hold 200
acres of the land as a homestead, although he actually used less than that quantity;
and the Court held on the former appeal, and still held, that the right of the
surviving spouse in the homestead was as great as that of husband and wife, if
both were asserting the homestead exemption. Shippey et al. v. Hough, 47 S.W.
672, at 674 writ refused.
The further proposition was submitted that, if the widow had the right to
select 200 acres as her homestead, she had not the right to run zigzag lines, leaving
the remainder of the survey irregular in form, and secure thereby the most valuable
part of the survey as a homestead. The Court also ruled against this contention.
The right to select the homestead is not affected by the fact that the better land has
been selected, and that of less value left subject to the claims of others. The law
33
does not require the homestead to be in any particular form, and the right of
selection necessarily means the right to take such as may be desired; and, as
persons having the right to select usually take that believed to be the best, it is a
reasonable supposition that, in allowing the right to select the homestead, it was in
contemplation of the legislature that the best land would be selected for homestead
purposes. Shippey et al. v. Hough, 47 S.W. 672, at 674.
Therefore, Douglas Ulbrich submits that he has a right to select as his
homestead the most valuable real estate that he and his wife owned during their
marriage. The family ranch is more valuable to Douglas as a homestead than the
house in San Antonio because he can continue to live and work at the ranch and
make a living in his retirement. He could not do the same at his house in town. He
applied to the Court to set aside his exempt ranch homestead, since he could no
longer keep all the property he and his wife owned during their marriage, and the
house in San Antonio has been sold as non-exempt real estate.
While the instrument designating the homestead is required by the statute to
contain a description of the property, specifying metes and bounds and other facts,
it seems that a failure to conform to the statutory requirement in this respect does
not render ineffectual a mortgage or deed of trust on the part of the land in excess
34
of two hundred acres.' 22 T.J. 211, Sec. 148. Blake v. Fuller, 184 S.W.2d 148, 151
(Tex.Civ.App. 1944). The designation is intended to exclude 200 acres from
forced sale, and to allocate the excess unencumbered with homestead claim. Id.
The designation instrument here in evidence, definitely sets out the 131 acres by
metes and bounds, and the complement remainder 'enough land out of the 160
acres * * * to make 200 acres in all reserved as a homestead.' Like Lincoln
Kennedy and wife, Douglas sufficiently described the land reserved for his
homestead, leaving his San Antonio house free of such claim, and subject to
forced sale. Id. So, on the death of Consuella, all rights in the rural homestead
continued in Mr. Ulbrich by virtue of Sec. 52, Art. 16, Texas Constitution.
The Texas Supreme Court stated in Andrews v. Security Nat. Bank of
Wichita Falls, 121 Tex. 409, 50 S.W.2d 253, 256 (Tex. 1932):
Homestead laws are not only based upon a tender regard for the
welfare of the citizen, but have for their object the stability and welfare
of the state. 29 Corpus Juris, pp. 782, 783; Armitage v. Toll, 64 Mich.
412, 415, 31 N.W. 408; Dalton v. Simpson, 270 Mo. 287, 298, 193 S.W.
546; Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Black v.
Rockmore, 50 Tex. 88, 96.
The universal rule of construction is that homestead provisions of
the organic law and statutes are to be liberally construed, for the
purpose of effectuating the wise and salutary provisions thereof. 13
Ruling Case Law, p. 547, s 8; 29 Corpus Juris, p. 787, s 15; Woods v.
Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35; Schneider v.
35
Bray, 59 Tex. 668; Pocoke v. Peterson, 256 Mo. 501, 165 S.W.
1017; Riggs v. Sterling, 60 Mich. 643, 27 N.W. 705, 1 Am. St. Rep.
554.
The Texas Supreme Court provided a thorough history of homestead rights in
Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35, 38 (Tex. 1929).
“We think the homestead provisions of our Constitution and statutes
beyond any question show a purpose not only to protect the family as a
whole, but the constitutent units of that whole. In plain terms, the
Constitution and laws protect first the husband, wife, and children,
jointly or as a family; second, they protect the surviving husband; third,
they protect the surviving wife; fourth, they protect the surviving
children, although some of them may be adults when the family unit is
dissolved by death. Our Constitution and statutes show definitely that in
the development of our homestead laws, we have long since passed
beyond the initial stage shown in the Exemption Act of 1839, and that
stage of the law when it may be held that the head of the family is
protected in homestead rights for the benefit of the family alone. Since it
is plain that the general purpose of our homestead laws is to protect the
individuals who compose the family, as well as the family, we think it
would be a very illiberal construction to say that when once there is a
family composed of father and minor children, the homestead, when the
latter become of age and cease to be members of the household, the
remaining constituent, shall not be protected. Applying the liberal rule,
we think that when once the homestead comes into existence by reason
of the family composed of the father and minor children (not finding in
the Constitution and laws any designated termination of that type of
homestead estate), we are left free to say when it terminates, or rather
we are left free to say that, since the estate is created by the Constitution
without limit as to its duration, we are not authorized to say when the
estate shall determine, except it may of course cease by alienation,
abandonment, or by laws such as apply to the divestiture of other
estates. This construction is in accord with the humance principles and
wise governmental policy upon which all homestead laws rest. Any
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other construction would cast homeless upon the world the aged father
or mother, who, though separated from his or her spouse (except by
death during marriage), had reared a family of children, who becoming
of age, had departed from the home. We know there is a great conflict of
authority on the question, and that some reason and logic may be
applied in support of the rule that would take the homestead from the
aged and destitute, who have reared a family without death bringing into
application the provisions of section 52 of the Constitution; but neither
reason nor logic can say that a homestead law, which turns the aged and
weary out of home because the constituent, or constituents, of his or her
home have left its [118 Tex. 596] shelter, fulfills the general and
underlying purposes of our homestead laws. A rule that father or mother
surviving the death of his or her spouse, raising children who became of
age and who left the parental home, can still hold the homestead against
all creditors and heirs, but that an old grandmother owning a homestead,
with a family composed of orphan grandchildren, who finally became of
age and left, could no longer be protected, cannot be explained upon
any principle which has been invoked as the basis of our homestead
laws; and, if we were to say in this case that Woods is not protected
here, we would be compelled to say the same thing regarding the case
used for illustration above. The hardships entailed by the breaking up of
such a home as plaintiff in error's here may be just as desolating and
burdensome as if the home had been broken by death and the homestead
preserved by survivorship of the husband; and there exists the same
personal reason and the same public policy for preserving one as for the
other.
In view of the fact that our homestead laws are for the protection of
each member of the homestead household, as well as the home itself,
those authorities which hold that homestead rights are not destroyed by
the dispersal of the members of the family are applicable. In fact, the
opinions of this court support the rule we have here announced. In the
case of Bahn v. Starcke, 89 Tex. 203, 208, 34 S.W. 103, 106 (59 Am. St.
Rep. 40), this court said with reference to the cases of Kessler v.
Draub, 52 Tex. 579, 36 Am. Rep. 727, and Blum v. Gaines, 57 Tex.
119: 'In those cases it was held that, where the head of a family, either
37
by the death or dispersion of its members, ceases to have a family, the
homestead will remain exempt.'
In the case of Blum v. Gaines, 57 Tex. 119, this court said:
'We are asked in this appeal (and this is the sole question presented
for our consideration) to reconsider and overrule the case of Kessler v.
Draub, 52 Tex. 575 (36 Am. Rep. 727), in which it was held that, when
a homestead has been once acquired, the subsequent death, marriage or
removal of all the individuals who composed the family, except the
surviving husband, does not subject the homestead to forced sale, under
a judgment against him, he still occupying it as a home. * * *
'There is a market distinction between the right of a widower who is
not the head of a family to acquire a new homestead in the first place,
and the right to retain the already
Page 39
existing homestead, after the dissolution of the family by death or
otherwise. As to the [118 Tex. 597] acquisition of a new homestead, he
would stand on the same ground as a bachelor or spinster, but in the
retention of the old homestead he occupies, both in the policy and
language of the law, a much more favorable standpoint. There is
something repugnant in the proposition, that, to the sorrow of losing his
family, should be added the misfortune that his home should be taken
from him by forced sale; and that, too, for a debt for the payment of
which it was not believed, either by himself or the creditor, at the time
of its creation, that the homestead would be liable, and for the security
of which it did not enter as an element of credit.
'We think, both on reason and authority, that the rule announced
in Kessler v. Draub, 52 Tex. (575) (36 Am. Rep. 727), is sound, and the
doctrine of that case is reaffirmed.'
The case of Bahn v. Starcke, supra, makes no holding contrary to the
above. What it did decide was an entirely different question.
38
In the case of First National Bank v. Sokolski, 62 Tex. Civ. App.
324, 131 S.W. 818, the question now before us was presented to the
Court of Civil Appeals and decided contrary to our holding. We have
examined the application for writ of error, however (which was
refused), and the question was not presented to the Supreme Court.
The elementary authorities support our conclusion. 29 Corpus Juris,
p. 932; 13 Ruling Case Law, p. 666, s 123; Thompson on Real Property,
vol. 1, ss 937, 938. The first authority cited states: 'On the other hand, in
many jurisdictions it is held that after a homestead has once been
acquired, it is not dependent on the continued existence of a family, and
that it is not lost by the death, permanent removal, or majority of all the
members of the family other than the head thereof, but continues to be
exempt so long as the premises are occupied as a home.' 29 Corpus
Juris, p. 932.
The second declares: 'While there is a conflict in the authorities on
the point, the general rule is that one who has acquired a homestead
does not lose his right to the exemption, so long as he continues to use
the property as his home, although, because of death or removal, the
family is completely broken up. This rule applies whether the family is
broken up by separation or by the death of some of the members thereof,
or by the coming of age of the children, and it is based on the hypothesis
that the intention of the legislature in enacting the various homestead
statutes was to protect the home and all its inmates, including the head
of the family as well as the [118 Tex. 598] dependent members, from
any business misfortune and financial adversity that might befall them.
Some courts, however, looking on statutes providing for a homestead
exemption as statutes of nurture, intended solely for the protection of
the dependent members of the family from the improvidence of the head
thereof, hold that on the dissolution of the family by the death or
removal of its members, the reason for the protection ceasing, the head
of the family loses his right to a homestead exemption previously
acquired. So it has been held that where children have arrived at their
majority, and have permanently severed their status as members of the
immediate family and taken up their abode elsewhere, the father, on the
death of the mother, ceases to be the head of a family so as to be entitled
39
to a homestead exemption. In general, however, while it is necessary
that a homesteader should have persons dependent on him for support,
and residing with him, in order to constitute a family, it is not necessary
that this should be true in order to retain an existing right to a
homestead.' 13 Ruling Case Law, pp. 666, 667, s 123.
In Thompson on Real Property, cited above, the author says:
'Some cases hold that while it is essential to the creation of a homestead
that the debtor have a family, such requirement is not essential to the
continuance of the right. If the family consists of the husband and wife
only, their death simultaneously will of necessity destroy the homestead
right, as there is no one to claim it. 'Although a homestead estate cannot
be acquired except by a householder having a family, yet, when once
acquired and still occupied by him, it is not defeated or lost by the death
or absence of his wife and children. Any other construction would
render a husband who has been deprived of his family by accident or
disease, or by their desertion without any fault of his, liable to be turned
out of his homestead by his creditors.'"'
'As a general rule the complete breaking up of the family for any cause,
does not operate to forfeit the homestead right of one who has acquired
it and continues to use the property as a home.' Thompson on Real
Property, pp. 1033, 1934, ss 937, 938.
Douglas submits that the homestead protections of the Texas Constitution
and the past 150 years of jurisprudence have served Texans well and they are just
as important today as they were in 1929.
The law makes provision for the probate court to set aside exempt property
for the use and benefit of the widow and children remaining with the family (Art.
3485, R.S.); but where the exempt property-homestead-has been set aside and
designated by the head of the family, such homestead is not subject to
40
administration; and where the probate court expressly reserves the homestead to
the heirs of the deceased, no further designation is required by the probate court.
The right to select and designate the rural homestead, means the right to take such
as may be desired, only limited to 200 acres, and to include the living quarters and
contiguous lands used in connection therewith. The probate court could do no
more, or order any less. Blake v. Fuller, 184 S.W.2d 148, 152 (Tex.Civ.App.
1944).
Ratliff v. Smith, 178 S.W.2d 138, 141 (Tex.Civ.App. 1943) ruled as follows:
“It is elementary, we think, where a rural homestead is established on a tract in
excess of two hundred acres that sales of portions thereof do not affect the
homestead right in the retained land. A surviving husband or wife may exchange
the homestead for another,--may sell the homestead and invest the proceeds to
acquire a new homestead. This, even though at the time of such exchange or
reinvestment the surviving husband or wife be not the head of a family. Watkins v.
Davis, 61 Tex. 414; Schneider & Bro. v. Bray, 59 Tex. 668.”
Therefore, Douglas submits that his right as a surviving spouse to designate
his homestead prior to Court approval of an inventory, appraisement and list of
claims is limited to whichever residence that he and his wife owned and could
41
have designated at the time of death. The right of the surviving spouse to
designate the probate homestead comes into existence at the time of death of a
spouse, and the surviving spouse may voluntarily designate his homestead at that
time. Williams v. Estate of Williams, 548 S.W.2d 492, 493 (Tex.Civ.App. —
Austin 1977). The homestead right in a survivor does not exist until the death of
one of the spouses. Vernon's Ann.Tex.Const. art. 16, § 52 (1955). Id.
Douglas submits that the summary judgment evidence clearly shows that
there are genuine issues of material fact as to his claim that the Ulbrich Ranch is
his probate homestead. Douglas was raised in Medina County, Texas, and
belonged to a ranching family. When he married, he and Consuella continued the
Ulbrich family ranching tradition. At one time, they were managing three ranches
in Bexar, Kendall and Medina counties. Although they maintained a residence in
San Antonio and Hondo, they always considered the Ulbrich Ranch to be their
homestead, notwithstanding their application for a homestead property tax
exemption in Bexar County.
Douglas' affidavits establish facts relating to his rural Medina County
homestead claim. The Affidavits of people, who have known Douglas and his
wife including Al and Katie Cargen, Carolyn Watson, Karon Robertson, Gary
42
Neubauer, and Mary Dahlman provide corroborating evidence to support Douglas'
designation of the Ulbrich Ranch as his probate homestead.
In support of his claim of right to designate the Ulbrich Ranch as his
probate homestead, Douglas filed a Formal Bill of Exceptions with attached
exhibits including family photos at the ranch and his sworn affidavit, dated 9-24-
12, as well as a Verified Supplemental Formal Bill of Exceptions w/exhibits dated
10-3-12.
Douglas also alleges and would prove that banking records from his bank
accounts in Hondo, Medina County, Texas, provide evidence that his homestead is
his ranch in Medina County, where he lives and banks. Douglas also alleges and
would prove that records of his property tax accounts Medina County, Texas,
provide evidence that his homestead is his ranch in Medina County, where he lives
and does business.
Additionally, Douglas alleges and would prove that he and Consuella
purchased 80 acres of land that had been part of the historic Ulbrich Ranch from
his sister, showing that both Mr. and Mrs. Ulbrich committed a substantial
investment and a firm commitment early in their marriage to be a ranching family.
Therefore, considering all of the summary judgment evidence in the record
43
of this case, Douglas submits that the summary judgment evidence clearly shows
that there are genuine issues of material fact as to his claim that the Ulbrich Ranch
is his probate homestead. The existence of genuine issues of material fact are for a
jury to decide, not for the Court to determine as a matter of law, which precludes
summary judgment.
Douglas respectfully submits that the Order Granting Motion for Summary
Judgment [CR 269-270] was signed in error on November 5, 2014 because there
were genuine issues of material fact as to each of the findings as matters of law
that the homestead of the Decedent was 3939 Starhill, San Antonio, Texas; that
the Texas Constitution's Survivor Homestead granted to Douglas Ulbrich was
3939 Starhill, San Antonio, Texas; that Douglas Ulbrich has voluntarily
abandoned and discontinued use of the Texas Constitution's Survivor Homestead
located at 3939 Starhill, San Antonio, Texas; and that Douglas Ulbrich cannot
transfer the Texas Constitution's Survivor Homestead to any other property.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the Douglas J. Ulbrich,
Decedent’s surviving spouse, respectfully requests this Court reverse the summary
judgment in its entirety and remand this case to the trial court for further
44
proceedings. Mr. Ulbrich requests such further relief at law or in equity to which
he may be justly entitled.
Respectfully submitted,
Philip M. Ross
SBN 17304200
1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
By: /s/ Philip M. Ross
Philip M. Ross
Attorney for Douglas J. Ulbrich
CERTIFICATION
I hereby certify that every factual statement in the brief is supported by
competent evidence included in the appendix or record.
/s/ Philip M. Ross
Philip M. Ross
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with Texas Rule of Appellate
Procedure Rule 9. It contains 11,482 words, 45 pages, 14 point typeface.
/s/ Philip M. Ross
Philip M. Ross
45
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been e-filed and sent on February 10, 2015 in compliance with the Texas Rules of
Appellate Procedure and/or by email pursuant to agreement to the following
attorneys:
Kristine Arlitt William Bailey
206 E. Locust St. 1100 N. W. Loop 410, Suite 700
San Antonio, Texas 78209 San Antonio, Texas 78213
/s/ Philip M. Ross
Philip M. Ross
46